1. ' SHAHID ANWAR BAJWA, J.---F.I.R. No,115 of 2011 was recorded at Police Station, Kandhra on 25-10- 2011 for an incident alleged to have taken place on 25-10-2011. Complainant stated that deceased, Abdul Qadeer was his son, who used to graze a herd of goats and uncle of the complainant had died and, therefore, his son brought back the herd earlier. In the evening, the son went for cutting grass and complainant along with other relatives was in the village for condolence when at about 6-00 p.m. He heard cries of his son. When he went there, he saw that his son was lying bleeding on the ground and had hatchet injuries on his head and had died. Complainant could not find any footmarks. Police was informed; dead body was removed to hospital and after autopsy and burial, F.I.R. Was lodged.
2. ' On 2-11-2011 i,e, 7th day of the incident, further statement of the complainant was recorded and he stated that after 4/5 days, he came to know that his son had exchanged harsh words with Sanaullah, Wazir Ahmed and Zulfiqar over matrimonial affairs and due to that, the above named three persons had murdered his son and such murder was seen by Abdul Khaliq and Azizullah.
3. Statements of Abdul Khaliq and Azizullah were recorded under section 164, Cr.P.C. On 18-11-2011.
4. Abdul Khaliq stated that he saw three persons and Sanaullah was having hatchet and after proverbial hakal, Sanaullah gave hatchet blow to Abdul Qadeer, who fell down and then the same hatchet was snatched by Wazir Ahmed and he assaulted upon Abdul Qadeer, who had already fallen down. Zulfiqar caught hold of head of the deceased and moved it to ensure that he has expired. P.W. Azizullah, in his statement under section 164, Cr.P.C., has stated substantially the same thing.
5. ' Learned counsel for the applicant submitted that there is not only 7 days delay in recording further statement but also 16 days delay in recording 164, Cr.P.C. Statement of the two witnesses. He stated that it is a case of double version and in this regard, he relied upon Shahbaz Gul v. The State, 1984 PCr.LJ 495, Muhammad Rafiq and another v. The State, 2011 YLR 400 and Abid Ali alias Ali v. The State, 2011 SCM R 161.
6. ' Learned APG vehemently opposed this bail application and submitted that hatchet has been recovered at the pointation of Sanaullah and Wazir Ahmed and it has been found to be blood- stained. He further submitted that it is a case of brutal murder of a person and the applicants are fully implicated. Regarding delay, he submitted that 161, Cr.P.C. Statements of Abdul Khaliq and Azizullah were recorded on 30-10-2011 and, therefore, delay in recording further statement and in recording 164, Cr.P.C. Statements is not material in the circumstances.
7. ' Learned counsel for the applicant; in rebuttal, submitted that there is discordance between ocular and medical evidence and, therefore, bail should be allowed.
8. ' I have considered the submissions made by the learned counsel and have also gone through the record.
9. ' In medical evidence, following injuries have been stated:--
(1) One (sharp) incised wound measuring 22 cm, skull bone found cut and fractured and brain cut and exposed, exterior from right side of face above the ear. The right occipital area posteriorly on the head.
(2) Incised wound, measuring about 12 x 2 cm, skull bone cut and fractured, brain material is found cut, on the right side of occipital region. Scalp, extending to injury No,1 on right side and injury No, 4 on left side posterior.
(3) Incised wound, measuring about 14 x 2 cm, positioning on the scalp cutting the skull bone and foreword situated 1 cm below injuries Nos.2 and 4.
(4) Incised wound, measuring about 12 x 2 cm, skull bone cut and fractured and brain material cut and exposed, situated on right side occipital region of scalp, extending to injury No,5 exteriorly on left side and injury No, 2 posteriorly.
(5) Incised wound, measuring about 27 x 2 cm, on zygomatic temporal and occipital region of scalp. Skull bone found cut and fractured. Brain material cut.
10. In statement of P.W. Abdul Khaliq, it is stated that Sanaullah gave hatchet blow on head of Abdul Qadeer and then Wazir Ahmed took hatchet and "assaulted upon the fell down person". P.W.
11. Azizullah, after describing role of Sanaullah and Wazir Ahmed, stated that "with the same hatchet
(he) caused blows to him (deceased) while he was lying on the ground." Both the witnesses have stated that a number of blows were given and, therefore, contention of the learned counsel that there is discordance between ocular and medical evidence is, prima facie, without substance.
12. ' Second contention of the learned counsel was that there has been delay in recording further statement (7 days) and statement under section 164, Cr.P.C. (16 days after further statement) and this creates doubt. The reply given by APG has been that 161, Cr.P.C. Statements were recorded on 30-10-2011 and they had narrated same circumstances. Learned counsel relied upon Shahbaz Gul's case (supra). It was held that since there were totally different versions given in F.I.R. And statement under section 164, Cr.P.C., bail was allowed. Present case is not the case of two versions because the complainant of F.I.R. Is not eye-witness of the incident and he merely stated that when he heard cries of his son; he rushed to the spot and found him lying prone on ground and dead whereas P. Ws. Have stated that they have seen the accused inflicting hatchet blows to the deceased. Therefore, case-law, relied upon by the learned counsel, is clearly distinguishable.
13. ' Learned counsel next relied upon Muhammad Rafiq's case (supra). In this case, there was delay of three days in lodging of F.I.R., which had not been explained by the prosecution and statement under section 164, Cr.P.C. Was recorded after four days of occurrence and again it had not been explained by the prosecution. In the present case, delay in lodging of F.L R. Is clearly explained because F.I.R. Was lodged after dead body was taken to hospital, autopsy was performed and burial had taken place. Obviously, autopsy and burial could not have been performed without informing Police in this regard. Even, post mortem report clearly indicates that dead body was brought to the hospital by PC lc Mukhtiar Ahmed. Therefore, this case is also distinguishable.
14. ' In Abid Ali's case (supra) name of the accused did not figure in the F.I.R. And it was given in a further statement. Complainant was one Nawaz Khan. It was alleged that on the day of incident, brother of the complainant and two other persons were going to attend a marriage ceremony and they were, on the way, met by the accused persons; five of theme *named in the F.I.R.; all armed with firearms; there were two unidentified persons also. Due to the firing, all three persons in the car expired. Complainant did not name Abid in written complaint and subsequently gave his name.
15. Police, in investigation, had found him to be innocent. It was in these circumstances that bail was allowed. In the present case, there is clear allegation against applicant No,1 of giving first blow and applicant No,2 giving blows thereafter. As far as applicant No,3 is concerned, his common intention oozes out of statement of witnesses that he went near prone deceased and thoroughly checked whether he had died or not.
16. Result of the above discussion is that this bail application is dismissed.
17. ' Needless to observe that the trial Court, while deciding guilt or innocence of the accused persons standing trial before it, shall not, in any manner whatsoever, be influenced by any of the observations made above.